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EXHIBIT
10.4
FIRST AMENDMENT TO
LEASE
This FIRST AMENDMENT TO
LEASE (this “Amendment”), is made as of the 6
th
day of August, 2007, by and
between U-Store-It, L.P., a Delaware limited partnership
(“Tenant”) and Amsdell and Amsdell, an Ohio general
partnership (“Landlord”).
W I T N E S S E T
H:
WHEREAS, Landlord and
Tenant are parties to that certain Lease made as of March 29,
2005, effective as of January 1, 2005 (the
“Lease”), wherein Landlord leases to Tenant certain
premises consisting of approximately Twenty One Thousand Eight
Hundred Eighty Nine (21,889) square feet of space, and known
as Suites 105, 115, 130, 215 and 300 located in a building known as
The Parkview Building, 6745 Engle Road, Middleburg Heights, Ohio
44130, including approximately Four Thousand (4,000) square
feet of space known as Suites E & F located in a building known
as Building IV, 6751 Engle Road, Middleburg Heights, Ohio 44130
(the Parkview Building and Building IV being collectively
hereinafter referred to as the “Buildings”), all as
further described in the Lease (the
“Premises”);
WHEREAS , Landlord and
Tenant supplemented such Lease, within that certain Consent
Agreement dated July 11, 2007, between Landlord, Tenant and
Zin Technologies, Inc.;
WHEREAS ,
contemporaneously with the execution of this Amendment, Tenant and
Rising Tide Development, LLC, a Delaware limited liability company
(“Rising Tide”) have entered into that certain Purchase
Agreement for fourteen (14) Rising Tide properties (the
“2007 Acquired Properties Purchase Agreement”), the
closing of which is the Effective Date of, and an express condition
precedent to, this Amendment; and
WHEREAS , Landlord and
Tenant now wish to amend the Lease, as supplemented, as fully set
forth in this Amendment, if and on the Effective Date.
NOW, THEREFORE , in
consideration of the mutual promises and covenants, conditions and
recitals hereof, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord
and Tenant, each intending to be legally bound, agree as
follows:
1. Amendment to
Section 7.1 . Section 7.1 (b) of the Lease is
hereby deleted as originally written.
2. Amendment to
Section 8.2 . The following shall be added after the first
paragraph of Section 8.2 of the Lease:
“Tenant agrees that
subject to the further provisions hereof, in the event Tenant
should desire to assign this Lease or sublet the Premises or any
part thereof, Tenant shall give Landlord written notice of such
desire at least thirty (30) days in advance of the date on
which Tenant desires to make such assignment or
sublease. Such notice
shall include the name, address and a description of the business
of the proposed assignee or subtenant and its most recent financial
statements and such other evidence of financial responsibility as
Landlord may reasonably request and a copy of the proposed sublease
or assignment. Landlord shall then have a period of thirty
(30) days following receipt of such notice and information
within which to notify Tenant in writing that Landlord elects, in
its sole discretion, either (a) to terminate this Lease as to
the portion of the Premises which is the subject of the proposed
sublease or assignment and lease direct to proposed subtenant or
assignee as to the space so affected as of the date so specified by
Tenant in which event Tenant will be relieved of all further
obligation hereunder as to such space, or (b) to permit Tenant
to assign or sublet such space, subject, however, to written
consent of the assignee or subtenant by Landlord which consent
shall not be unreasonably withheld, conditioned or delayed as
hereinafter provided, or (c) to reasonably refuse to consent
to Tenant’s assignment to subleasing such space and to
continue this Lease in full force and effect as to the entire
Premises. If Landlord should fail to notify Tenant in writing of
such election within said thirty (30) day period, Landlord
shall be deemed to have elected option
(c) above.
If Landlord does not elect
to terminate this Lease in accordance with option (a) above,
Landlord’s consent to
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